Some background
6 The appellant is an Iranian citizen. He arrived in Australia on 15 September 2012 as an unauthorised maritime arrival.
7 On 8 October 2012, the appellant attended an arrival interview and then on 3 December 2012 he attended an entry interview with the relevant department.
8 On 25 November 2015, the relevant department invited him to apply for the visa.
9 On 11 January 2016, the appellant applied for the visa with the assistance of a migration agent.
10 In his supporting statutory declaration, the appellant said that his family were supporters of the government and the Islamic republic, that his father served in the Sepah and that his three maternal uncles served in the Basij.
11 The appellant said that in 2001 he joined the Basij as a volunteer, and then progressed to being a regular member. He said that in 2004 he became an active member, which included being trained in handling weapons as well as undergoing ideological and political training. He said that his role with the Basij involved promoting and enforcing acceptable Islamic standards.
12 The appellant said that at the end of 2011 he decided to intervene in the physical assault of an intoxicated man at his Basij base and told his colleagues that the proper procedures needed to be followed. But apparently his colleagues did not take kindly to the intervention, which was seen as a challenge to authority.
13 Now together with the statutory declaration there were two letters written in Farsi from the commander of his Basij base to the appellant. There were accompanying translations of the two letters by a certified translator, which the appellant was assisted in providing by the migration agent.
14 I should set out some of this material.
15 The statutory declaration provided in part:
Shortly before leaving Iran in July 2012 I received 2 very troubling letters from the Basij.
One of these letters was from the commander of the Basij base which I normally reported to. The contents of this letter alleged that the Basij had received reports of my lack of interest in co-operating with the Basij, and that I had failed to do certain things. The letter also threatened expulsion from the Basij. The allegations in the letter against me were untrue. I realised that there was a plot to get me into trouble.
The other letter, from the Basij headquarters, which I received about a week after the first letter, ordered me to report immediately at a certain Basij base to explain my conduct.
This letter confirmed my realization that there was a plot to get me into trouble with the Basij.
…
In July 2012, I received two letters from the Basij which changed my whole life.
Up to that point I had been self-employed in my own business for about 4 years. I had two employees. I was in a steady relationship and was intending to get married. I lived in my own apartment, and I was supporting my family. The contents of those 2 letters caused me to close my business, leave my apartment, family and girlfriend; and flee from Iran.
The first of these letters was from [redacted], the commander of the Basij base which I normally reported to. The contents of this letter alleged that the Basij had received reports of my lack of interest in co-operating with the Basij, and that I had failed to do certain things. The letter also threatened expulsion from the Basij. The allegations in the letter against me were untrue. I realised that there was a plot to get me into trouble.
The second letter, from the Basij headquarters, which I received about a week after the first letter, confirmed my realization that there was a plot to get me into trouble with the Basij. The letter ordered me to immediately attend at a certain Basij base to explain my conduct.
When I got those letters I checked with my friend [redacted], who worked in the administration at our base, if he knew what was happening. He confirmed that I was in big trouble. He told me about what had happened to certain other members of the Basij who had received similar letters. They disappeared. This caused me to think of those Basij members from our base who I'd not seen in a long time. When I asked [redacted] about certain members he confirmed that so and so who got letters like I did disappeared after they reported to the Basij headquarters.
What [redacted] told me and the information conveyed in the letters made me believe that the Basij perceived me as having a difference of political opinion, and that they planned to harm me.
An allegation that I was not interested in co-operating with Basij can be interpreted in Iran as opposition to Velaya e faqih, and consequently opposition to the Ayatollah. The Basij was created on the orders of the Ayatollah. Disinterest in co-operating with the organization created on the orders of the of the Ayatollah means that one is rejecting the Ayatollah. Rejection of the Ayatollah or opposition to the Ayatollah is not acceptable in Iran, and it makes you an enemy of the state. Such an allegation against a person puts that person's life in danger. So, I understood that they wanted to harm me, and that my life was in danger.
I did not report to the Basij headquarters. I fled from Iran on 24th of July 2012, before the Basij took any actions to arrest me.
16 So, the appellant had received a letter dated 5 July 2012 from the commander of his Basij base alleging that he had received reports of his lack of interest in co-operating with the Basij and failed to do certain things.
17 This first letter, omitting formal parts, stated (certified translation):
Warning Letter
From: [location] Defence Military Base
To: [the appellant]
Greetings:
In light of the received reports regarding your lack of Interest in cooperating with basij* and refusal to take Part in street inspections as well as refusal to attend Mosque, we hereby warn you that should this continue You will be sacked from Basij.
Signed by Commander of [location] Defence Military
Base: [redacted]
18 The appellant then received a second letter on 13 July 2012.
19 This second letter, omitting formal parts, stated (certified translation):
Warning Letter
From: [location] Defence Forces
To: [the appellant]
You are requested to report to headquarters immediately upon receipt of this letter Regarding your absence from stop and search operations and security patrols.
Signed by Commander of [location] Defence forces
20 I will return to these two letters later. I have used Western dates rather than their Persian calendar equivalents.
21 Now I should say that before both the delegate and the Authority there was never any suggestion that the second letter had been mistranslated or incompletely translated.
22 After receiving the two letters, the appellant was apparently told by a friend that he was in "big trouble" and that other members who had received similar letters had disappeared. The appellant did not report to the Basij headquarters as required but instead fled from Iran.
23 The appellant said that if returned to Iran, he feared being harmed or possibly killed by the Basij, the Sepah or the Iranian government.
24 On 7 April 2016, the appellant was invited to attend an interview before the delegate. As part of this invitation the appellant was clearly told of the importance of the provision of certified translations and of the significance of the interview.
25 On 26 April 2016, the appellant was interviewed by the delegate, including about the two letters.
26 On 24 August 2016, the delegate refused to grant the visa.
27 Now the delegate accepted the validity of the visa application, the appellant's claimed identity and that Iran was the receiving country for the purposes of his assessment.
28 And the delegate also accepted that the appellant had joined the Basij and had progressed to being an active member. The delegate accepted that the appellant had witnessed the brutality and abuses claimed in his statutory declaration and accepted the authenticity of the first and second letters produced to the department.
29 But the delegate concluded that the two letters were only asking the appellant to show cause. Further, the delegate found that they only threatened him with expulsion from the Basij.
30 Now the delegate found that the appellant had been a member of the Basij over a long period, but that he only had low involvement in the time leading up to his departure from Iran.
31 In his reasons, the delegate set out the text of the first and second letters, and then said:
I discussed the two letters that the applicant received from the Basij and which underpinned his departure from Iran to seek asylum. I put to him that the letters appeared to be of an administrative nature asking him to show cause for not performing his required duties and, considering that he was afforded the opportunity to respond, questioned how that was persecutory in nature. The applicant stated that the Basij were clever enough to couch their language in official terms and give the impression they were abiding by the law but in practise were out to persecute him. He stated he recalled a colleague in the past had disappeared under similar circumstances and feared the same would happen to him. Such fears were accentuated by a friend he had in the Basij who tipped him off.
I put to the applicant that I had difficulty in accepting that in being asked to explain himself against a charge that he was being persecuted by the Basij. I also put to him that if he had reneged on a job commitment that the organisation had him rostered on for them, they may well have had good reason to ask him for an explanation. Further, I also found it difficult to accept his claims of serious harm when the letters only threatened him with expulsion. I noted that he had already received the benefits of military service exemption and had a passport so there was less at risk. The Basij is a large organisation with a formal structure and therefore I consider it would have detailed administrative processes in place. I also put to him that he was not arbitrarily arrested or detained and therefore due process seemed to have been followed in them seeking his response.
The applicant responded that the manner in which the Basij set him up was to ensure that they gave the impression of doing things by the law so as not to draw untoward attention to them, and that was how they tended to operate.
32 As the first letter contained an allegation concerning his absence from attending mosque, the delegate then turned to that aspect. After referring to the appellant's evidence and country information, the delegate concluded:
… I am satisfied that while the Basij may have asked the question about his lack of mosque attendance, and it was coupled with a number of other things they were enquiring about e.g. him not showing up for rostered duty, country information cited above does not support his claim of persecution as a result, nor do I consider it plausible that he was consequently exposed to the risk of harm.
33 The delegate then turned to the risk of harm for persons who came to the adverse attention of the Basij. He said:
… The applicant is found to possess a low profile within the Basij and not otherwise politically active. There is therefore little reason for him to come to the adverse attention of the authorities upon return. It is quite possible that he may be questioned in the normal course upon return in the manner of most returnees which DFAT reported to be limited to an hour or two after which the vast majority of people are released. Though DFAT reports that those attracting the attention of the authorities could be detained for longer, the applicant is assessed as a person of low profile and not posing a political risk to the authorities and is therefore not considered to be at risk of harm upon return. I also do not consider it plausible that a minor disciplinary infringement on his part could remain alive after him being out of the country for over four years. I do not find the applicant to be of interest to the Basij.
34 As I say, on 24 August 2016 the delegate refused to grant the visa. That decision was referred on the same day to the Authority for review.
35 On 14 September 2016, the appellant, through his migration agent, made a submission to the Authority. Relevantly, the submission said:
Based on information provided at the interview which was not rejected, and documents submitted in support of his application, which you have access to, the Applicant wishes to point out the following:
• He was an active member of the Basij since 2004, and a Director of [redacted] at the Basij base since 2011 (as is evident from attachments provided in support of his claim). [The] Applicant submits that he did not have a low profile, as concluded by the Delegate.
• He had noticed that the members at his Basij Base became more ruthless following the 2009 post election protests, and some of them had threatened to get him.
• [The] Applicant alleged that he was tipped off by a friend in the administration department about what happened to a colleague who received similar letters. (Having regards to his role involving responsibility as Director of [redacted] [the] Applicant would have had to interact with the administration department at the base because of his role. This makes it plausible that could have had a friend in the administration department at the base).
It is the Applicant's submission that it was reasonable for him to fear a real chance of serious harm following the receipt of the 2 letters in 2012, having regards to the knowledge gained from his experiences at the base over the 8 years as an active Basij member. His fear was well‐founded. There was a real substantial basis for his fear. It was not merely assumed or based on mere speculation.
36 I should note at this point that there was no suggestion made by either the appellant or his agent that the second letter had been mistranslated or incompletely translated; as I have said, the English translation of the text of the two letters was set out in the delegate's reasons. Indeed such an issue only arose before the primary judge in affidavit material filed for the first time in the Federal Circuit Court proceedings.
37 On 6 December 2016, the Authority affirmed the delegate's decision. Let me say something about the Authority's published reasons.
38 The Authority accepted that the appellant had received the two letters and that he had done the things alleged in them. But it did not accept the appellant's claim that "there was some plot against him based on false allegations" as, on his evidence at the interview, "the allegations in the letters that he was refusing to take part in Basij activities and follow orders were true".
39 The Authority was not satisfied that the two letters indicated any intention to harm the appellant, or that he was perceived as opposing the Basij. In essence two reasons were given.
40 First, the documentary evidence suggested that the appellant continued to retain the trust of the Basij at least up until June 2012 such that the appellant "was not viewed with suspicion or believed to be against the Basij, and that the letters were the result of his non-attendance at scheduled duties".
41 Second, it was said that the letters themselves do not suggest any threat of harm. The Authority said:
… The first letter threatens that the applicant will be sacked if he continues his lack of interest in cooperating, refusal to take part in street inspections and to attend mosque. On his own evidence, the applicant did not respond to this letter. The second letter, a week later, requests him to report regarding his absence from patrols. The applicant claims that his friend who worked for the Basij told him that he was in big trouble and that other persons who received such letters disappeared, and that upon hearing this he remembered certain persons who he had not seen for some time. While I accept that may be the case, I am not satisfied those persons came to some harm. It is unremarkable that persons who received disciplinary letters would no longer be present at the Basij base or participate in Basij activities, particularly given that, as demonstrated by the first letter received by the applicant, a potential consequence was sacking from the Basij. The applicant's claim that such persons 'disappeared' appears speculative.
42 Now the Authority accepted that the appellant had been threatened with dismissal and was ordered to attend the Basij headquarters to explain himself. But the Authority was not satisfied that he was perceived to be against the putative principle of Velayat-e faqih, otherwise imputed with an anti-regime opinion, or that there was an intention to harm him. It was pointed out that the appellant remained in Iran for a period after the second letter and "there is no evidence of his receiving any adverse attention during that time, or of there being any further interest in him following his departure". Further, the Authority was not satisfied that the result of the appellant's non-response to the letters and continued lack of cooperation would have been anything other than the appellant's dismissal from the Basij.
43 Ultimately, the Authority was not satisfied that at the time of the appellant's departure he was of adverse interest to the Basij or other Iranian authorities or that there was any ongoing interest in him in relation to his past voicing of views about the Basij's actions, his non-compliance with Basij orders, non-response to the two letters, or his departure from Iran following that non-response.
44 On 20 December 2016, the appellant applied for judicial review of the Authority's decision.
45 On 18 April 2017, the appellant filed in the court below an affidavit from a translator, which said (at [4]):
I have compared the content of the 13 July 2012 letter with the Translated Version and I say that, in the Translated Version, the last paragraph of Persian text in the body of the 13 July 2012 letter has not been translated. The omitted paragraph from the 13 July 2012 letter translates into English as:
It should be noted that, if you do not attend, necessary action will be taken.
46 This was the first occasion on which the appellant had raised such a concern at any level.
47 On 25 January 2020, the primary judge dismissed the judicial review application. The evidence before his Honour included the belated evidence of the translator pointing out an omission in the translation of the second letter. Let me say something about his reasons.
48 The first ground of review below was that the Authority's determination had miscarried because of an error in translation in the text of the second letter. The omission was the sentence "[i]t should be noted that, if you do not attend, necessary action will be taken".
49 The primary judge rejected this ground. He found that within the statutory context the appellant had been given a meaningful opportunity before both the delegate and the Authority to present his claims that he feared harm. His Honour identified that the explanation of the relevance of the letters came from the appellant, who spoke Farsi, and at no stage did he refer specifically to the untranslated part when he was giving evidence, that is, the Farsi version that he well knew about. Further, the primary judge rejected the appellant's contention as to the ominous effect of the omission. In summary, his Honour found that the appellant was not denied a real opportunity to present his case by the omission.
50 The second ground of review below was an allegedly unreasonable failure by the Authority to consider exercising the discretion under s 473DC(3) to invite the appellant to an interview, particularly on the issue of whether the appellant had been dismissed from the Basij. It was said that the Authority's findings in relation to the two letters were different to the findings of the delegate.
51 Now the primary judge rejected the factual premise of the ground, that is, that the findings were different. And he held that the Authority's conclusion was in essence the same conclusion that had been reached by the delegate in relation to the two letters. His Honour concluded that the bases for the findings in relation to the two letters were not different such that it was legally unreasonable for the Authority not to consider exercising its discretion under s 473DC(3).
52 Accordingly, the primary judge dismissed the application.